Non Fatals Essay

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  • Created on: 08-06-15 15:38
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Non-Fatals Evaluation
The current law on non-fatal offences is contained in the Criminal Justice Act 2009 and the OAPA
act 1861. The OAPA has been deemed unsatisfactory, and in 1998, the Law Commission issued a
draft bill suggesting reforms to both structural and specific aspects of the offences.
The first criticism of the law on non-fatals is that they are badly defined. Assault and Battery have
no statutory definition, and the more serious offences are contained in the OAPA, an act that is
154 years old. Professor JC Smith described the law on non-fatals as a "rag bag of offences, put
together with no thought to substance or form". However the current law, has paved the way for
a well argued proposal made by the bill. The draft bill suggests that the current offences will be
replaced with four clauses. S18 will be replaced by clause 1, intentionally causing serious injury to
another person. S20 will be replaced by clause 2, recklessly causing serious injury to another
person. S47 will be replaced by clause 3, intentionally or recklessly causing injury to another
person, and assault/battery will be replaced by clause 4. This reform will mean that all the
non-fatal offences are found in one place, making the law more concise and therefore easier for
the jury to understand and apply. This will also solve the issue of the law being a "rag bag of
offences" by having them in one statute.
The second criticism of the law is that the language used in the non-fatals is antiquated and often
misleading. An example of this is the use of the word "assault" in section 47. This is misleading as
battery can form the basis of section 47, not just assault. Another example is the use of "grievous"
in S20 GBH. This is extremely dated, and it is likely that the jury would have to have this explained
to them. The use of "malicious" in s18 wounding with intent has also come under scrutiny as the
Mens Rea is already defined as "with intent", rendering the word "malicious" completely
redundant. The interchangeable use of "cause" "occasion" and "inflict" is also an issue. Lord Steyn
stated that there was no difference between the words, suggesting one should be used to ensure
consistency in the law. The draft bill suggests that antiquated or misleading language should be
replaced with consistent and succinct vocabulary. An example of this is the draft bill opting to use
to simply use "cause" rather than "occasion" or "inflict". This makes the law more consistent. The
bill also removes "grievous", changing it to the more modern and understandable "serious". To
clarify section 47, they have simply removed the offence, replacing it with clause 3 "intentionally
or recklessly causing injury". This is much more concise and removes any confusion regarding
whether a battery can form the basis of s47. The same thing has occurred with "malicious".
Wounding with intent is replaced by clause 1 "intentionally causing serious bodily harm". This is
also more concise.
The hierarchy of the non-fatals has also been criticised in terms of seriousness. It seems unfair that
assault and battery carry a max. sentence of 6 months, whilst section 47 can carry 5 years. This is
because the only difference between the two offences can be the victim suffering some
discomfort (Miller). It therefore seems harsh that s47 carries a higher max sentence. It also seems
wrong that section 47 and section 20 carry the same maximum sentence of 5 years, even though
s20 is seen as a much more serious crime. Although the maximum sentence of s47 is rarely
imposed, it seems strange that crimes of a different seriousness carry the same sentence. The gap
between section 20 and section 18 could also be criticised. The jump in max sentence from 5 years
to life seems questionably large, considering the only difference between the crimes is a
marginally more serious mens rea is s18. This may be justified, however, by the fact that S18
shares the Mens Rea for murder, it is simply chance whether the person lives or dies. The draft bill
proposes to confront the issue of sentencing by matching the sentence to the crime, creating a

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Non-Fatals Evaluation
fairer hierarchy. Clause one (s18) would still have a max sentence of life. Clause 2 (s20) would rise
from 5 to 7 years. Clause 3 (s47) would remain at 5 years. Clause 4 would remain at 6 months with
the alternative of a fine. By increasing the sentence for section 20, it shows the difference in
seriousness from section 47. However, the gap between s20 and 18 remains large (7 years to life)
This may require further thought.…read more

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Non-Fatals Evaluation
However, the offence I unambiguous in that it is clear to everyone what a wound is, meaning
juries find it easy to apply. The draft bill suggests removing the offence of wounding completely,
replacing it with clause 2 "recklessly causing serious harm". This removes any ambiguity, making
the law far more coherent.…read more

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